Virginia-Carolina Rubber Co. v. United States

WHALEY, Judge. This action is for the recovery of excise taxes paid under section 600 of the Revenue Act of 1924 (26 USCA § 881 note), which imposed a tax on certain automobile accessories. Defendant concedes that the articles on which the tax was levied were not taxable within the meaning of the foregoing act, but resists the refunding of the tax on the ground that section 424 of the Revenue Act of 1928 (26 USCA § 2424) prevents recovery, since plaintiff did not bear the burden of the tax, but passed it on to its customers, and has not filed the appropriate bond to assure the delivery of the refund to its customers in the event recovery is had. No contention is made by plaintiff that a bond was filed. The only question is whether the tax was passed on. Suit was commenced in this court on October 1,1931, which was after the passage of the Act of 1928. The record shows, and we have found as a fact, that by the procedure followed by plaintiff the tax was effectually passed on to its customers. The case accordingly comes squarely within the principle laid down by the Supreme Court in United States v. Jefferson Electric Manufacturing Company, 291 U. S. 386, 54 S. Ct. 443, 78 L. Ed. 859, and recovery cannot be had. The petition must be dismissed. It is so ordered. BOOTH, Chief Justice, and WILLIAMS, LITTLETON, and GREEN, Judges, concur.